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Rex v Shipemba (Cr. App. No. 125/1938) [1938] EACA 139 (1 January 1938)
- Citation
- [1938] EACA 139
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Knight-Bruce, AG.C.J. (Tanganyika), Sheridan, (C.J. Kenya), Whitley CJ
- Case number
- Cr. App. No. 125/1938
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Knight-Bruce, AG.C.J. (Tanganyika), Sheridan, (C.J. Kenya), Whitley CJ
- Case number
- Cr. App. No. 125/1938
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
Despite discrepancies between depositions and trial evidence, and excluding the inadmissible confession, there was abundant evidence to support the conviction. The absence of two defence witnesses did not prejudice the appellant, as reasonable steps were taken to secure their attendance and counsel for the accused did not wish to call them. The appeal was dismissed as the conviction was supported by sufficient admissible evidence.
Court disposition
appeal_dismissed
Orders
- Appeal dismissed.
02
Material facts
Parties
Mashimba bin Shipemba
AppellantRex
Respondent Counsel: Paterson03
Procedural history
Posture
Criminal Appeal / Appeal Judgment
04
Questions and positions
Legal issues
- 01
Whether discrepancies between depositions and trial evidence affect the conviction.
- 02
Whether the confession made to the village headman is admissible under section 25 of the Indian Evidence Act.
- 03
Whether the absence of certain defence witnesses prejudiced the appellant.
Party arguments
- Applicant
- The appellant was absent and unrepresented; no arguments were advanced on his behalf.
- Respondent
- The Crown argued that, despite discrepancies between depositions and trial evidence, there was sufficient evidence to convict. The confession to the village headman was inadmissible under section 25 of the Indian Evidence Act. Reasonable steps were taken to secure attendance of defence witnesses, and counsel for the accused did not wish to call them.
05
Court’s reasoning
Legal principles
- 01
Section 25, Indian Evidence Act
Confessions made to persons in authority are inadmissible under section 25 of the Indian Evidence Act.
- 02
Court of Appeal for Eastern Africa, present judgment
Where defence counsel attacks the prosecution case by highlighting discrepancies between depositions and trial evidence, the depositions should be put in as evidence.
- 03
Court of Appeal for Eastern Africa, present judgment
It is desirable for all Crown and requested defence witnesses to be present at trial, but absence does not necessarily prejudice the case if reasonable steps are taken and counsel does not wish to call them.
06
Ratio, limits and disposition
Ratio decidendi
Despite discrepancies between depositions and trial evidence, and excluding the inadmissible confession, there was abundant evidence to support the conviction. The absence of two defence witnesses did not prejudice the appellant, as reasonable steps were taken to secure their attendance and counsel for the accused did not wish to call them. The appeal was dismissed as the conviction was supported by sufficient admissible evidence.
Obiter and limits
- Defence counsel should ensure depositions are put in as evidence when attacking prosecution case based on discrepancies.
- It is desirable for all Crown and requested defence witnesses to be present at trial.
Court disposition
appeal_dismissed
- Appeal dismissed.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
COURT OF APPEAL FOR EASTERN AFRICA
BEFORE SIR JOSEPH SHERIDAN, C. J. (Kenya), WHITLEY, C. J. (Uganda), and KNIGHT-BRUCE, Ag. C. J. (Tanganyika)
REX. Respondent (Original prosecutor) $v$ .
MASHIMBA BIN SHIPEMBA, Appellant (Original accused) Cr. App. No. 125/1938
Appeal from conviction by H. M. High Court of Tanganyika Criminal Procedure—Evidence—Deposition—Attendance of witnesses.
Held (21-10-38).—That where Counsel for the defence attacks the prosecution case by drawing attention to discrepancies between the depositions and the evidence at the trial he should have the depositions put in evidence.
Appellant, absent, unrepresented.
Paterson, Crown Counsel (Tanganyika), for the Crown.
JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).—When one makes every allowance for the discrepancies existing between the depositions and the evidence at the trial and excludes the statement made by the appellant to the village headman which was probably a confession and so inadmissible under section 25 of the Indian Evidence Act, there remains abundant evidence to convict the appel-The appeal will therefore be dismissed. lant.
There are two matters we should like to refer to; one is that where counsel for the defence attacks the prosecution case by drawing attention to such discrepancies as we have referred to, he should have the depositions put in as evidence; the other is the desirability of having not only all Crown witnesses present at the trial but also defence witnesses for whom the appellant has asked in the lower court. In the present case at the same time we have no reason for not thinking that all reasonable steps were taken to have in attendance the two witnesses who did not appear and incidentally counsel for the accused at the trial intimated that he did not wish to call them.
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